Citation NR: 9616473
Decision Date: 06/14/96 Archive Date: 06/24/96
DOCKET NO. 94-18 297 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Detroit,
Michigan
THE ISSUE
Entitlement to service connection for an ulcer disability.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
K. Loring, Associate Counsel
INTRODUCTION
The veteran had active military service from May 1948 to
March 1954.
This matter arises from an August 1993 rating decision from
the Department of Veterans Affairs (VA) Regional Office (RO)
in Detroit, Michigan, which denied the benefit sought on
appeal. Following compliance with the procedural
requirements set forth in 38 U.S.C.A. § 7105 (West 1991), the
case was referred to the Board of Veterans’ Appeals (Board)
for appellate consideration.
Preliminarily, the Board notes that the veteran’s service
medical records were destroyed in a 1973 fire at the National
Personnel Records Center. The RO, however, has made several
attempts to obtain information in an effort to reconstruct
the service medical history. The veteran was unable to
supply sufficient specific information to further access
medical records of the period of his service. The Board
acknowledges VA’s heightened obligation to assist the veteran
in obtaining records under these circumstances. Cuevas v.
Principi, 3 Vet.App. 542, 548, (1992). In light of the RO’s
good faith efforts to locate alternative records, the Board
finds that all available relevant evidence has been assembled
in this case.
CONTENTIONS OF APPELLANT ON APPEAL
The appellant contends that he was treated during military
service for ulcer disease which has continued to the present
time, and for which he is entitled to service connection.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1995), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the preponderance of the
evidence is against entitlement to service connection for an
ulcer condition.
FINDINGS OF FACT
2. The veteran first was treated for an ulcer disability no
earlier than 1979, some twenty-five years after his discharge
from military service.
3. There is no competent medical evidence that the veteran’s
current ulcer condition is in any way related to his military
service.
CONCLUSION OF LAW
An ulcer disability was neither incurred in nor aggravated by
active military service, and may not be presumed to have been
so incurred. 38 U.S.C.A. § 1101, 1110, 1112, 1131, 5107
(West 1991); 38 C.F.R. § 3.102, 3.303, 3.306, 3.307, 3.309
(1995).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Preliminarily, the Board finds that the veteran’s claim is
well grounded within the meaning of 38 U.S.C.A. § 5107(a);
Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990); Gilbert v.
Derwinski, 1 Vet.App. 49, 55 (1990). That is, the Board
finds that the veteran has presented a claim which is not
implausible when his contentions and the evidence of record
are viewed in the light most favorable to that claim. The
Board is also satisfied that all relevant facts have been
properly and sufficiently developed and that no further
assistance to the veteran is required in order to comply with
the duty to assist him mandated by 38 U.S.C.A. § 5107(a).
Factual Background
The veteran has stated that he was treated for an ulcer
during service in late 1948 while stationed in Germany and
again while at Camp Kilmer in New Jersey. The veteran was
unable to provide specific treatment dates other than late
1948. The RO was unable to confirm the veteran’s statements
as the service medical records are unavailable.
A VA patient data card reveals that the veteran had an
appointment with the UGI service in March 1979.
In 1983, the veteran was afforded a VA examination in
conjunction with a pension claim. That examination showed no
complaints, treatment or clinical abnormalities regarding the
veteran’s digestive system.
A record of instructions from the emergency room at Detroit
Receiving Hospital and University Health Center from March
1987, show an initial impression of rectal bleeding.
Private medical records from the Southwest Detroit Hospital
show that in October 1988 the veteran was diagnosed with a
duodenal bulbar ulcer. At the time of treatment, the veteran
reported a 7 to 8 year history of peptic ulcer disease.
Medical records from the VA Medical Center in Detroit show
that the veteran received a mental hygiene evaluation in
March 1990. During the evaluation he reported a history of
ulcers. There are no other VA treatment records.
The veteran was afforded a personal hearing in September
1993. He testified that he was treated for an ulcer in the
latter part of 1948 but he was never told or did not remember
the type of ulcer. He stated that he was treated regularly
and received medication “on and off” from 1948 until his
separation from service in 1954. He testified that his
treatment was always as an outpatient. He further stated
that he was again treated right after service by his family
doctor who told him that he had bleeding ulcers. The veteran
could not remember the physician’s name. He also stated that
he was treated in 1975 for an ulcer condition at the Allen
Park VA Medical Center.
Analysis
In order to establish service connection, there must be a
disability resulting from personal injury suffered or disease
contracted in the line of duty or for aggravation of a
preexisting injury suffered or disease contracted within the
line of duty if the disability is not a result of the
veteran’s own willful misconduct. 38 U.S.C.A. § 1110;
38 C.F.R. § 3.303. Further, when a veteran who has served
for ninety days or more manifests, to a degree of 10 percent
or more within one year of separation from service, a
specified chronic disease, that disease is presumed to have
been incurred during service. 38 U.S.C.A. §§ 1112(a), 1137;
38 C.F.R. §§ 3.307, 3.309.
In the instant case, there is no competent evidence that the
veteran was diagnosed with an ulcer condition during service.
While the Board finds the veteran’s testimony credible that
he was treated for some type of gastric disorder during
service, there is no evidence to establish that his condition
was an ulcer or other than acute and transitory in nature.
Moreover, the veteran, as a lay person is not competent to
offer his medical opinion that he was treated for an ulcer
during service. Espiritu v. Derwinski, 2 Vet.App. 492
(1992).
The medical records reveal that the initial diagnosis of an
ulcer condition was in October 1988. At that time the
veteran reported a 7-8 year history of ulcer disease. The
1987 emergency room instructions that bear a diagnosis of
rectal bleeding give absolutely no indication as to what
caused the bleeding. The veteran’s VA examination in 1983
showed no evidence of complaints or clinical findings
regarding his digestive system. The veteran also submitted a
VA patient data card that bore the date of an appointment
with UGI service in March 1979. Assuming the credibility of
the veteran’s statement that he was treated for an ulcer
condition during this time, it is still some twenty-five
years after separation from service that an initial diagnosis
of an ulcer condition appears. There is no evidence
whatsoever of continuity of treatment in this case that would
provide a basis for determining that the veteran’s ulcer
condition was manifest during service or within one year
after separation from service. Accordingly, the Board
concludes that the preponderance of the evidence is against
entitlement to service connection for an ulcer disorder.
In reaching this decision the Board considered the doctrine
of reasonable doubt; however, as the preponderance of the
evidence is against the appellant’s claim, the doctrine is
not for application. Gilbert v. Derwinski, 1 Vet.App. 49
(1990).
ORDER
Entitlement to service connection for an ulcer disability is
denied.
JOHN R. PAGANO
Acting Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1995), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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